Legal Comment and So Forth

Cyber-Bullying, Bullying and Harassment

The recent tragic case of Erin Gallagher has again sparked a debate on online harassment or “cyberbullying”, and what can be done to stop it. Calls have been made for new legislation to combat the phenomenon. A classic mistake is being made here, which is the assumption that legislation can “combat” anything. Laws can only make things illegal, they cannot stop them from happening. That job is much harder, and cannot be assigned to any one individual. In any case, cyberbullying, like many other phenomena prefixed with a “cyber-“, is already illegal.

Section 10 of the Non Fatal Offences Against the Person Act, 1997, provides for the offense of Harassment. Any person who, “without lawful authority or reasonable excuse, by any means including by use of the telephone, harasses another by persistently following, watching, pestering, besetting or communicating with him or her, shall be guilty of an offence“. Elsewhere, the section provides for punishment of up to seven years imprisonment, and allows for a court to order, either in addition to, or as an alternative to a conviction, that a person shall not, for such period as the court may specify, communicate by any means, or come within a specified distance of a person’s home or workplace. The section, though drafted long before the internet became a part of most people’s daily lives, is perfectly suited to the kind of circumstances which prevail in cyberbullying cases. Indeed, it has been used previously in cases where the harassment was entirely via email, and featured no physical element.

Anonymity, often cited as an insurmountable impediment to law enforcement, need not be as problematic as we are told. In most cases of bullying, a victim will have some idea of who the culprits are. Often, the content of the messages will make the sender’s identity clear. That should be enough to at least spur the Gardaí to make preliminary enquiries. Whether sufficient evidence is available for a conviction is an assessment to be made at the conclusion of an investigation, not before it can even begin.

If the Gardaí told Erin Gallagher or her family that there was nothing they could do for her, they were either fobbing her off, or genuinely misinformed as to the law. Indeed, it speaks volumes that having previously said that there was nothing they could do, they are now investigating the Erin Gallagher case. There is no need to outlaw cyberbullying, because it is no different from any other kind of bullying.

The problem, I suspect, goes deeper than legislation. We do not take children seriously as citizens or individuals. No adult who went through what Erin Gallagher went through would be told by Gardaí that there was nothing to be done. Much of what children go through on a daily basis would be subject to criminal proceedings in the adult world. Bullying, at levels far beyond what adults would tolerate, is seen as simply part of being young.

Moving away from that mindset is easier said than done. Arrests of the Donegal bullies would, most likely, spark cries that “they’re only kids”, and “have learned their lesson”. More convenient for all then, and especially in a small community, to blame the internet, and call for new laws.